Consumer Law Library

Tomato Paste Manufacturing Industry

16 CFR Part 133 · Trade practice rules · in the Code of Federal Regulations 1938-1976 (13 annual editions)

Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.

Latest edition: Library of Congress, 1976 CFR · Earliest edition: 1938 CFR

Text (1976 edition, OCR)

Chapter |—Federal Trade Commission

tion Act “is not applicable to Govern-
ment contracts for supplies.” (38 Opin-
ions, Attorney General 539)

Note: This section is based on the provi-

sions of section 2 of the Clayton Act as
amended by the Roblnson-Patman Act,

(2) Subsection (b) of section 2 of the
Clayton Act as amended, which reads as
follows, is in amplification of the note to
subparagraph (5) of paragraph (a) of
this section and of the note to paragraph
(d) of this section.

Upon proof being made, at any hearing on
a complaint under this section, that there
has been discrlmination in price or services
or facillties furnished, the burden of rebut-
ting the prima facie case thus made by show-
ing justification shall be upon the person
charged with a violation of this section, and
unless justification shall be affirmatively
shown, the Commission is authorized to Is-
sue an order terminating the discrimination:
Provided, however, That nothing herein con-
tained shall prevent a seller rebutting the
prima facie case thus made by showing that
his lower price or the furnishing of services
or facilities to any purchaser or purchasers
was made in good faith to meet an equally
low price of a competitor, or the services or
facilities furnished by a competitor.

§ 132.14 Commercial bribery.

It is an unfair trade practice for any
industry member, directly or indirectly,
to give, or offer to give, or permit or
cause to be given, money or anything of
value to agents, employees, or represent-
atives of customers or prospective cus-
tomers, or to agents, employees, or rep-
resentatives of competitors’ customers
or prospective customers, without the
knowledge of their employers or prin-
cipals, as an inducement to influence
their employers or principals to purchase
or contract to purchase products manu-
factured or sold by such industry mem-
ber or the maker of such gift or offer,
or to influence such employers of prin-
cipals to refrain from dealing in the
products of competitors or from dealing
or contracting to deal with competitors,
or to effect any other advantage in favor
of the industry member making such
gift or offer with respect to the sale of
industry products to such employers or
principals.

§ 132.15 Exclusive deals.

It is an unfair trade practice for any
member of the industry engaged in com-
merce,’ in the course of such commerce,

2 See footnote to § 132.13 on page 582.

58—063—76-——-38

§ 132.201

to lease or make a sale or contract for
sale of any industry product, for use,
consumption, or resale within any place

‘under the jurisdiction of the Unlted

States, or fix a price charged therefor,
or discount from, or rebate upon, such
price, on the condition, agreement, or
understanding that the lessee or pur-
chaser thereof shall not use or deal in
the goods of a competitor or competitors
of the lessor or seller, where the effect
of such lease, sale, or contract for sale,
or such condition, agreement, or under-
standing, may be to substantially lessen
competition or tend to create a monopoly
in any line of commerce.

COMMITTEE ON TRADE PRACTICES
§ 132.201 Industry committee.
The provisions of § 16.1 of this sub-
chapter shall be applicable to an indus-

try committee established under this
part.

PART 133—TOMATO PASTE MANU-
FACTURING INDUSTRY

Group I

Sec.

133.1 Misrepresentation of industry prod-
ucts.

133.2 Specifications for tomato paste.

133.3. Misrepresentation as to tomato
paste.

133.4 Misrepresentation as to artificial
color.

133.5 Misrepresentation as to tomato con-
tent of product.

133.6 Deceptive deplctlons,

133.7 Defamation of competitors and dis-
paragement of their products.

133.8 Substituting inferior products for
those ordered.

133.9 Commercial bribery.

133.10 Inducing breach of contract.

133.11 Enticing away employees of com-
petitors.

133.12 Selling below cost.

133.18 Discrimination.

183.14 Misrepresentation as to basil, etc.

Group IT

133.101 Disclosure of sollds content.

133.102 Repudtation of contracts.

133.103 Fake or fictitious bids.

133.104 Truthful disclosure of quality of

products.
133.105 Dissemination of credit Information.

AvutrHoritTr: Secs. 6(g), 5, 38 Stat. 722, 719;
15 U.S.C. 46(g), 45, unless otherwise noted.

Source: 3 FR 2155, Sept. 3, 1938, unless
otherwise noted.

585


§ 133.1
Group I
§ 133.1 Misrepresentation of industry
products.

The practice of selling, packing, ad-
vertising, or representing tomato paste
or related products, or any simulation
or imitation thereof, in a manner which
is calculated to mislead or deceive or
has the tendency and capacity or effect
of misleading or deceiving purchasers,
prospective purchasers, or the consum-
ing public with respect to the character,
nature, content, grade, quality, quantity,
origin, substance, material, preparation,
or manufacture of such products, or in
any other material respect, is an unfair
trade practice.

§ 133.2 Specifications for tomato paste.

For the purpose of and as used in this
part:

(a) Tomato paste (Salsa di Pomodoro,
“Salsa’”) is understood to be the product
resulting from the concentration of the
screened or strained fleshy and liquid
portions of ripe tomatoes, except those
portions from skin and core trimmings;
with or without the addition of salt, and
with or without the addition of basil
leaf. The finished product shall contain
not less than 22 percent of tomato solids.

(b) Should such minimum of 22 per-
cent tomato solids hereafter be raised to
a higher percentage or proportion by ap-
plicable provisions of law or by rules or
regulations in pursuance thereof, then
such higher percentage so fixed shall be
considered the minimum under this
part, in lieu of such 22 percent specified
in paragraph (a) of this section.

(c) Heavy tomato paste (“Concen-
trato”) is understood to be tomato paste
containing not less than 33 percent of
tomato solids.

(d) It is an unfair trade practice for
any member of the industry or other
seller to cause the concentration or con-
tent of his tomato paste to be misrepre-
sented, or by any other means to repre-
sent, directly or indirectly, that the prod-
uct is of a certain concentration of 22
percent or more tomato solids when such
is not true in fact.

§ 133.3 Misrepresentation as to tomato
paste. .

It is an unfair trade practice to sell,
offer for sale, advertise, describe, or oth-
erwise represent directly or indirectly,
any product as being tomato paste (Salsa

Title 16—Commercial Practices

di Pomodoro, “Salsa”), heavy tomato
paste (“Concentrato”), or other similar
tomato paste product, when such prod-

- uct does not conform to the specifications

set forth in § 133.2.

§ 133.4. Misrepresentation as to artificial
color.

It is an unfair trade practice to sell,
offer for sale, advertise, or otherwise rep-
resent, directly or indirectly, any product
of the industry containing added arti-
ficial color without then and there mak-
ing full and nondeceptive disclosure of
the presence of such added artificial
color.

The use of any coloring matter what-
soever shall not be permitted when the
same is introduced for the purpose or
with the effect of concealing or masking
damage or inferiority, or of adulterat-
ing the product or rendering the same
deleterious.

§ 133.5 Misrepresentation as to tomato
content of product. .

It is an unfair trade practice to sell,
offer for sale, advertise, describe, or oth-
erwise represent, directly or indirectly,
any product of the industry as contain-
ing a higher tomato solids content than
is actually the case.

§ 133.6 Deceptive depictions.

The use of photographs, cuts, engrav-
ings, illustrations, or pictorial or other
depictions, or devices, of industry prod-
ucts, in catalogues, sales literature, ad-
vertisements, or other representations,
in sucli manner as to have a capacity and
tendency or effect of misleading or de-
ceiving the purchasing or consuming
public as to the origin, manufacture,
grade, quality, quantity, size, composi-
tion, material, coloring, or content of any
products of the industry, or ingredient
thereof, or in any other material respect,
is an unfair trade practice.

§ 133.7 Defamation of competitors and
disparagement of their products.

The defamation of competitors by
falsely imputing to them dishonorable
conduct, inability to perform contracts,
questionable credit standing, or by other
false representations, or the false dis-
paragement of the grade, quality, or
manufacture of the products of competi-
tors, or of their business methods, selling
prices, values, credit terms, policies, or
services, is an unfair trade practice.

586


Chapter |—Federal Trade Commission

§ 133.8 Substituting inferior products
for those ordered.

The practice of using or substituting
any product of the industry inferior in
grade or quality to that specified by the
purchaser, without the consent of said
purchaser to such use or substitution, or
with the tendency, capacity, or effect of
otherwise misleading or deceiving pur-
chasers, prospective purchasers, or the
consuming public, is an unfair trade
practice.

§ 133.9 Commercial bribery.

Directly or indirectly to give, or permit
to be given, or offer to give, money or
anything of value to agents, employees,
representatives of customers or prospec-
tive customers, or to agents, employees,
or representatives of competitors’ cus-
tomers, without the knowledge of their
employers or principals, as an induce-
ment to influence their employers or
principals to purchase or contract to pur-
chase industry products from the maker
of such gift or offer, or to infiuence such
employers or principals to refrain from
dealing or contracting to deal with com-
petitors, is an unfair trade practice.

§ 133.10 Inducing breach of contract.

Knowingly inducing or attempting
to induct the breach of existing lawful
contracts between competitors and their
customers or their suppliers by any false
or deceptive means whatsoever, or know-
ingly interfering with or obstructing the
performance of any such contractual
duties or services of any such means, with
the purpose and effect of unduly hamper-
ing, injuring, or prejudicing competitors
in their businesses, is an unfair trade
practice.

§ 133.11 Enticing away employees of
competitors.

Willfully enticing away the employees
of competitors with the purpose and ef-
fect of unduly hampering, injuring, or
prejudicing competitors in their busi-
nesses, is an unfair trade practice.

§ 133.12 Selling below cost.

The practice of selling industry prod-
ucts below the seller’s cost with the in-
tent and with the effect of injuring a
competitor and where the effect may be
substantially to lessen competition or
tend to create a monopoly or unreason-
ably restrain trade is an unfair trade
practice; all elements recognized by good

§ 133.13

accounting practice as proper elements
of such cost shall be included in deter-
mining cost under this section.

§ 133.13 Discrimination.

(a) Prohibited discriminatory prices,
or rebates, refunds, discounts, credits,
etc., which effect unlawful price discrim-
ination. It is an unfair trade practice for
any member of the industry engaged in
commerce, in the course of such com-
merce, to grant or allow, secretly or
openly, directly or indirectly, any rebate,
refund, discount, credit, or other form
of price differential, where such rebate,
refund, discount, credit, or other form of
price differential effects a discrimina-
tion in price between different purchasers
of goods of like grade and quality, where
either or any of the purchasers involved
therein are in commerce, and where the
effect thereof may be substantially to
lessen competition or tend to create a
monopoly in any line of commerce, or to
injure, destroy, or prevent competition
with any person who either grants or
knowingly receives the benefit of such
discrimination or with customers of
either of them: Provided, however, (1)
That the goods involved in any such
transaction are sold for use, consump-
tion, or resale with any place under the
jurisdiction of the United States;

(2) That nothing contained im this
section shall prevent differentials which
make only due allowance for differences
in the cost of manufacture, sale, or de-
livery resulting from the differing meth-
ods or quantities in which such commo-
dities are to such purchasers sold or
delivered;

(3) That nothing contained in this
section shall prevent persons engaged in
selling goods, wares, or merchandise in
commerce from selecting their own cus-
toiners in bona fide transactions and not
in restraint of trade;

(4) That nothing contained in this
section shall prevent price changes from
time to time where made in response to
changing conditions affecting either (i)
the market for the goods concerned, or
(ii) the marketability of the goods, such
as, but not limited to, actual or im-
minent deterioration of perishable goods,
obsolescence of seasonal goods, distress
sales under court process, or sales in

2 Paragraph (a) of § 133.13 shall not be
construed as embracing practices prohibited
by paragraphs (b), (c), and ,(da), of this
section.

587


§ 133.14

good faith in discontinuance of business
in the goods concerned.

(b) Prohibited brokerage and com-
missions. It is an unfair trade practice
for any member of the industry engaged
in cominerce, in the course of such com-
merce, to pay or grant, or to receive or
accept, anything of value as a commis-
sion, brokerage, or other compensation,
or any allowance or discount in lieu
thereof, except for services rendered in
connection with the sale or purchase of
goods, wares, or merchandise, either to
the other party to such transaction or to
an agent, representative, or other mter-
mediary therein where such intermedi-
ary is acting in fact for or in behalf, or
is subject to the direct or indirect con-
trol, of any party to such transaction
other than the person by whom such
compensation is so granted or paid.

(c) Prohibited advertising or promo-
tional allowances, etc. It is an unfair
trade practice for any member of the
industry engaged in commerce to pay
or contract for the payment or adver-
tising or promotional allowances or any
other thing of value to or for the bene-
fit of a customer of such member in the
course of such commerce as compensa-
tion or in consideration for any services
or facilities furnished by or through
such customer in connection with the
processing, handling, sale, or offering for
sale of any products or commodities
manufactured, sold, or offered for sale by
such member, unless such payment or
consideration is available on proportion-
ally equal terms to all other customers
competing in the distribution of such
products or cominodities.

(d) Prohibited discriminatory services
or facilities. It is an unfair trade prac-
tice for any member of the industry en-
gaged in commerce to discriminate in
favor of one purchaser against another
purchaser or purchasers of a commodity
bought for resale, with or without proc-
essing, by contracting to furnish or by
furnishing, or by contributing to the
furnishing of any services or facilitles
connected with the processmg, handling,
sale, or offering for sale of such com-
modity so purchased upon terms not ac-
corded to all purchasers on proportion-
ally equal terms.

(e) Illegal price discrimination. It is
an unfair trade practice for any mem-
ber of the industry or other person en-
gaged in commerce, in the course of such
commerce, to discriminate in price in any
other respect contrary to section 2 of

Title 16—Commercial Practices

the Clayton Act as amended by the act
of Congress approved June 19, 1936 (49
Stat. 1526-8; (15 U.S.C. 13-13b, 21a)),
or knowingly to induce or receive a dis-
crimination in price which is prohibited
by such section as amended.

(Sec. 2, 38 Stat. 780, as amended, secs. 2, 3,
4, 49 Stat. 1527, 1528; 15 U.S.C. 13, 18a, 13b,
21a)

§ 133.14 Misrepresentation as to basil,
etc.

It is an unfair trade practice to cause
any tomato paste or reiated product to
be represented, directly or indirectly,
as containing basil leaf or any other m-
gredient when such is not true in fact;
or when such basil leaf or other specified
megredient has been omitted in packing
from various or sundry cans of the prod-
uct so represented.

Group It
§ 133.101 Disclosure of solids content.

The practice, by each member of the
industry, of making clear and nondecep-
tive disclosure to the purchasing public
of the percentage or proportion of
tomato solids present in his product,
thereby disclosing whether his tomato
paste contains only the maximum per-
centage of tomato solids or some higher
percentage, is recommended as a proper
and desirable practice to foilow in the
interest of affording consumers and
other purchasers correct information as
to the concentration of the product, and
of avoiding confusion, deception and
misrepresentatlon in respect thereto.

§ 133.102 Repudiation of contracts.

Lawful contracts are business obliga-
tions which should be performed in letter
and in spirit. The repudiation of con-
tracts by sellers on a rising market or by
buyers on a declining market is con-
demned by the industry.

§ 133.103 Fake or fictitious bids.

The industry condemns fake or ficti-
tious bids made for the purpose of de-
ceiving competitors and securing undue
advantage. If plans and specifications
are changed and new bids called for after
the original bids have been submitted
and opened, the same fairness should
obtain as with the original bid.

§ 133.104 Truthful diselosure of quality
of products.

In the interest of consumer protection,
the industry records itself as favoring,

588


Chapter I|—Federal

and recommends, the practice of mem-
bers making fair and truthful disclosure,
in their advertising, labeling, sales lit-
erature, and other selling representa-~
tions of the quality and content of their
products.

§ 133.105 Dissemination of credit in-

formation.

The industry records its approval of
distributing information covering delin-
quent and slow accounts insofar as it
may be lawfully done.

PART 134—OLEOMARGARINE MAN-
UFACTURING INDUSTRY

Group I

Sec.

184.1 Misrepresentation of industry prod-
ucts.

184.2 Misbranding.

184.3 Substitution of products not con-
forming to specifications.

184.4 Misrepresentation as to milk content.

185.6 Misrepresentation as to fat content.

134.6 Compliance with State and Federal

. spectfication requirements.

134.7. Commercial bribery.

134.8 Unlawful interference with raw ma-
terlal purchases.

1384.9 Defamation of competitors and dis-
paragement of their products.

184.10 False invoicing.

134.11 Inducing breach of contract.

184.12 Enticing away employees of competi-

Ts.

134.18 Consignment selling.

184.14 Publication or circulation of false or
misleading price quotations, etc.

284.15 Selling below cost.

134.16 “Loss leaders.”

«34.17 Discrimination.

Group II

184.101 Cost records,

184.102 Repudiation of contracts.

134.103 Promotion of use of American agri-
cultural products.

AUTHORITY: Secs. 6(g), 5, 88 Stat. 722, 719;
15 U.S.C. 46(g), 45, unless otherwise noted.

Source: 3 FR 28238, Sept. 28, 1938, unless
otherwise noted.

Group I

§ 134.1 Misrepresentation of industry
products.

It ts an unfair trade practice to make
or publish, or cause to be made or pub-
lished, directly or indirectly, any false,
misieading or deceptive statement or
representation, by way of advertisement
or otherwise, concerning the grade, qual-

Trade Commission § 134.6
ity, quantity, use, material, content,
origin, nutritive value, preparation, man-
ufacture, or distribution of oleomarga-
rine, or in any other material respect.

§ 134.2 Misbranding.

The false or deceptive marking or
branding of oleomargarine with any
word, phrase, name, trade-mark, labei,
picture, design, device, or other represen-
tation, with respect to the grade, quality,
quantity, use, content, origin, prepara-

‘ tion, manufacture, or distribution of such

oleomargarine, or, in any other matertal
respect, is an unfair trade practice.

§ 134.3 Substitution of products not
conforming to specifications.

The substitution and delivery to cus-
tomers, without the consent of the pur-
chaser, of eleomargarine which does not
conform to formula specifications, sam-
ples, or representations upon which the
purchase order is based; or the substitu-
tion or delivery, with or without the con-
sent to the purchaser, of oleomargarine
which does not conform to applicable
Federal or State laws or regulations;
with the purpose or with the tendency
and capacity or effect of misleading, the
purchasing or consuming public, is an
unfair trade practice.

§ 134.4 Misrepresentation as to milk
content.

Falsely representing, directly or in-
directly, through advertising or other-
wise, that any type of oleomargarine
contains milk when, in fact, the cream
or any other food content has been ex-
tracted therefrom, for the purpose or
with the tendency, capacity or effect of
misleading or deceiving purchasers,
propective purchasers, or the consuming
pubiic, is an unfair trade practice.

§ 134.5 Misrepresentation as to fat cou-
tent.

It is an unfair trade practice for any
member of the industry to sell, or offer
for sale through advertising or otherwise,
any oleomargarine the fact content of
which is less than that specified in ap-
plicable regulations, duly promulgated
by authority of law, for the purpose, or
with the tendency, capacity or effect of
misleading or deceiving purchasers, pro-
spective purchasers, or the consuming
public.

§ 134.6 Compliance with State and Fed-
eral specification requirements.

It is an unfair trade practice to sell or
distribute, or cause to be sold or dlstrib-

589